RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
not prosecute refrain from prosecuting a
charge that the prosecutor knows is not supported by
(b) make reasonable efforts to assure that the accused has been advised
of the right to, and the
, for obtaining, counsel and has been given reasonable opportunity to
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) disclose to the defense at the earliest practical time all evidence or
information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating
known to the prosecutor, except when the prosecutor is relieved of this responsibility by a
order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(e) (f) make
reasonable efforts to except for statements that are necessary to inform the public of
the nature and extent of the prosecutor's action and that serve a legitimate law enforcement
refrain from making extrajudicial comments that have a substantial likelihood of heightening
condemnation of the accused and exercise reasonable care to prevent investigators, law
personnel, employees or other persons assisting or associated with the prosecutor in a criminal
from making an extrajudicial statement that the prosecutor would be prohibited from making
Rule 3.6 or this Rule.
 A prosecutor has the responsibility of a minister of justice and not simply that
of an advocate.
This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence. This
also obligates the prosecutor to promptly make available to the defense information which is
material and favorable to the defendant's position. Discovery of such information by the
confers no property right in the same upon the prosecutor; rather, in the interest of seeing that
truth is ascertained and all proceedings justly determined, the defense should be accorded ready
access to any such information.
See also Rule 3.3(f), governing ex parte proceedings,
grand jury proceedings are included. Applicable law may require other measures by the
and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion
constitute a violation of Rule 8.4.
 A defendant may waive a preliminary hearing and thereby lose a valuable
challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of
preliminary hearings or other important pretrial rights from unrepresented accused persons.
Paragraph (c) does not apply however to an accused representing himself with the
approval of the
tribunal. Nor does it forbid the lawful questioning of
a an uncharged
suspect who has knowingly
waived his the rights to counsel and silence.
 The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
 Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the lawyer-client relationship.
 Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Rule is intended to restrict the statements that a prosecutor may make that comply with Rule 3.6(b) or 3.6(c).
 Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer's office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 09/20/85 and 11/08/85; Minutes of the Joint Committee on Attorney Standards on 06/08/04; 03/18/05, 06/14/05.